BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 78T, UNITED FOOD AND COMMERCIAL
Attorney John S. Williamson, Jr., 103 West College Avenue,
Suite 1203, Appleton, Wisconsin 54911, appearing on behalf of UFCW Local 78T.
Brigden & Petajan, S.C., by Attorney John C. Patzke, 600 East
Mason Street, Milwaukee, Wisconsin 53202-3831, appearing on behalf of Appleton Mills.
Pursuant to the provisions of the collective bargaining agreement between the parties,
Food and Commercial Workers, Local No. 78T (hereinafter referred to as the Union) and
Mills (hereinafter referred to as the Employer or the Company) requested that the Wisconsin
Employment Relations Commission designate Daniel Nielsen of its staff as arbitrator of a
the termination of employe Richard Retzlaff. The undersigned was so designated. A hearing
held on October 20, 1999, at the Company's offices in Appleton, Wisconsin, at which time
were afforded full opportunity to present such testimony, exhibits, other evidence and
were relevant to the dispute. The parties submitted post-hearing briefs, which were
through the undersigned on November 29, 1999, whereupon the record was closed.
Now, having considered the testimony, exhibits, other evidence, contract language,
arguments of the parties
and the record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The issues before the arbitrator are:
1. Whether the Company violated the collective bargaining
agreement when it terminated the grievant, Ricky
2. If so, what is the appropriate remedy?
The parties stipulated that the collective bargaining agreement allows discharge for
legitimate reasons, and
require just cause for discipline.
At a meeting on May 13, 1999, Company Human Resources Manager Ed Butteris
gave the grievant a letter
terminating his employment:
As you are aware, employees concerned for
their safety have come forward and accused you of making threats of
revenge combined with statements about owning a trench coat and an AR-15, such statements
made on or about
Monday May 10, 1999. Our investigation leads us to believe that the allegations are true.
In the best interests of health
and safety of our workforce, Appleton Mills cannot tolerate direct or indirect threats of
serious bodily harm or death
toward its employees. On this basis your employment is terminated effective immediately
for this single act.
As an independent reason for your
termination, your recent behavior relative to your fellow employees clearly
indicates a continuing inability to work with others at Appleton Mills without causing undue
confrontation. You have
been repeatedly warned through the years about this problem, which has not been corrected
discipline, and which does not give any indication that further corrective opportunities would
be other than futile.
The basis of the letter was a series of reports management had received from other
On Tuesday, May 11th, Vernon Lee, a Tacker Operator, went to
Yarn Department foreman Jim Krebsbach
and told him that the grievant had approached him and Lead Worker John Paalman the day
before. According to Lee,
the grievant came up to them as they were discussing a movie. The grievant sat down on a
table next to Paalman's
desk and started talking, trying to get into the conversation. Lee and Paalman continued
their conversation, and the
grievant started raising his voice. Finally, he said "Nobody here respects me anymore.
I'll never forgive or forget anybody." Lee replied "Rick, what's up with that? You
to me in months." The grievant said he wasn't talking to him. Lee and Paalman started
the movie again, and the grievant interrupted, saying "That's what I'm talking about.
respects me. If you guys only knew what was going on. I don't ever forgive and I don't
forget." Lee asked him if he was still mad about a prank that had been played involving an
placed in Lee's locker. In reply to the comment about forgiving and forgetting, Lee asked
him if he
didn't go to church or recall his catechism, where the first thing taught was to forgive.
him he was going to get a "hot ass" if he kept talking stupid, and the grievant responded that
didn't believe any of that "crap." Lee was taken aback by this statement, because he knew
grievant was a regular churchgoer.
The grievant said "If you only knew I already have my trench coat and my
15." Lee asked him what a "15"
was, and the grievant said he meant an AR-15, a type of assault rifle. Paalman said "Rick,
you're not going to shoot
me are you? We've been getting along pretty good lately." The grievant said he wasn't
talking about Paalman, but
as he spoke he became louder and more upset. Lee told him he knew he didn't have an
AR-15 because he couldn't
afford one and his wife wouldn't let him buy one. Paalman told the grievant that he wasn't
smart enough to load an
AR-15 if he had one, and the grievant replied that Paalman didn't know what he was capable
of. Paalman said he'd
seen the grievant shoot, and he didn't have anything to worry about. The grievant still
seemed very agitated, and at
this point, Lee got up and walked away. Paalman went back to working on the computer,
and the grievant walked off.
After work, Lee thought more about the conversation and discussed it with some
friends and with his father-in-law, a retired police officer. This was only a few weeks after
the deadly shootings by two students wearing trench
coats and carrying AR-15's at Columbine High School in Colorado. His father-in-law
advised him to report the matter.
When he got to work on Tuesday, he went to Union President Eric Kuehnl, and told him
about the grievant's
comments. Kuehnl told him it wasn't a Union matter, and that he should report it to
management. Around noon, he
told Krebsbach about the conversation, and Krebsbach told him that Human Resources should
deal with the matter.
Paalman also reported the conversation to management on the 11th.
After the conversation on the 10th, a
maintenance worker had made some comment about the Columbine shootings, and it
occurred to Paalman that that
was what the reference to trench coats and AR-15's meant. As Paalman recalled it, he went
back and asked Lee if he
thought the grievant was serious or not, and Lee told him that he was taking it seriously.
They discussed it again the
following morning, and Paalman asked a number of people, including Eric Keuhnl, what
they thought he should do.
After these conversations, Paalman told Krebsbach about the grievant's comments.
Krebsbach went to Production
Superintendent William Bast and told him what the two employes had reported. Bast called
Paalman and Lee to his
office to confirm Krebsbach's report. They did, and Bast contacted Butteris and told him to
interview the two men.
Bast then met with Needling Department Supervisor Dave Griesbach, Eric Kuehnl and Union
Treasurer Jeff Bessette.
He told Kuehnl and Bessette about the allegations, and
informed them that he would be investigating and would speak with the grievant. He
asked if the
grievant had been moody recently. Kuehnl said he had, and suggested referring him to the
Assistance Program. Bast noted that the grievant had already been seeing personnel at the
The grievant was not at work on the 11th until late in the day,
because of a doctor's appointment. When he
reported to work at 3:30 p.m., he was called into Bast's office and advised of the allegations.
He said a group of
employes had a conversation about guns, but that he was just one person in the conversation.
The allegations upset
him, and since it was almost quitting time, he was told to go home.
The grievant was not scheduled to work on May 12th or
13th. On the morning of the 12th, Yarn Department
Lead Worker Steve Posselt went to Vice President of Manufacturing Mike Miller's office.
Posselt told Miller he had
heard about the allegations against the grievant, and said he thought he ought to report
something he regarded as being
very strange. According to Posselt, as he left work a week or two earlier, he had seen the
grievant sitting in his truck
in the parking lot by the employe entrance. Posselt thought it was odd, since it was the
grievant's day off, but he
assumed he was waiting for someone. Posselt was usually one of the last ones to leave, and
when he looked behind
him he didn't see anyone else. He waved to the grievant, but he made no response.
Later on the 12th, Operator Richard Unger went to Miller's office
and told Miler that he, too, had witnessed
odd behavior by the grievant. Specifically, Unger said that the grievant had recently been
coming to the Yarn
Department quite often and opening the door to the loading dock. Unger said that he just
opened the door and looked
out. While many employes would occasionally go out to the loading dock, the grievant was
doing it more frequently
than others, enough so that Unger noticed.
The next day, the grievant, Bast, Miller and Union Steward Ed Brown met in the
Human Resources office.
The allegations were laid out, and the grievant was terminated. The instant grievance was
filed, protesting the
termination. It was not resolved in the lower steps of the grievance procedure and was
referred to arbitration. A
hearing was held on October 20th, at which time, in addition to the facts
recited above, the following testimony was
Vernon Lee testified that discussion of weapons was not
uncommon in the plant, and that the grievant had
previously said he wanted an AR-15, but that he couldn't afford one and that his wife would
not let him buy one. The
grievant had mentioned that his brother-in-law owned an AR-15 and that he had fired the
weapon. While he and the
grievant did not get along and had not spoken outside of work related matters for four years,
Lee recalled that four or
five years before this incident, he had tried to sell the grievant a 9 mm pistol that he owned.
At that time he didn't feel
the grievant was dangerous.
Lee testified that there were a great many practical jokes played at the Company, and
grievant was a frequent target of jokes. He expressed the opinion that the grievant
would usually respond with twice as many pranks against those who played jokes on
common joke is to take a person's scissors out of their pouch. Lee recalled an instance in
someone did this to the grievant, and placed the scissors on a console. The scissors fell off
console and someone kicked them over to the grievant. He picked them up and threw them
Huss, an electrical engineer who is part of management.
Lee recalled that the grievant was very upset during the conversation on the
10th, and appeared quite serious.
It seemed to Lee as if it wasn't really him talking, and that he wasn't really talking to them.
He characterized the
discussion as spooky, though he did not feel personally threatened. He did not discuss it
with Paalman afterwards, but
did discuss it with Jeff Steed, who had heard about it and asked him. The next day, before
reporting it, he spoke with
Paalman, and they both concluded that they would feel bad if they didn't report it and
something bad happened.
John Paalman testified that he had known the grievant for a
long time, and that he seemed to have his ups
and downs in mood. For several weeks before this incident, he had been acting differently,
and he told Paalman that
there were problems in the Department and that it was the Foskett thing all over again. This
was a reference to an
incident in which an employe named Foskett had choked the grievant. Paalman asked him
who the employe was who
was choking him, and the grievant declined to answer, saying only that management was
aware of the situation and
was watching the other person.
Paalman said the grievant was quite angry when he spoke on May
10th, and that he seemed very serious.
Paalman did not feel threatened by the comments, but later when someone mentioned the
Columbine shootings he
realized what the grievant meant by having a trench coat and an AR-15. He then spoke with
Lee, who said he was
taking it seriously. Since the foreman was gone for the day, Paalman did nothing further
until the following morning.
Paalman testified that there had once been a good deal of horseplay in the plant, but
subsided after the choking incident involving the grievant and Foskett. All of the employes
called into the office and warned of discipline if it did not subside. Paalman said he had also
witnessed the incident in which the grievant threw a scissors at Huss. He said it was a hard
He also recalled an incident years before this when he and the grievant were feuding. He
stick at the grievant, and the grievant hit it and bloodied Paalman's lip. Paalman said it was
since he had taunted the grievant.
Greg Butteris testified that the grievant had been suspended
and issued a warning letter in April of 1998,
for a confrontation with another employe, Al Foskett. The letter was sent to the Union, and
A written warning with one (1) day suspension is being issued to
Mr. Retzlaff for his repeated
provocation of employees and his failure to back away from a confrontation with a
Retzlaff had previously been warned not to engage in behavior which tends to provoke other
employees into verbal or
physical altercations. Despite this warning, on or about March
25, 1998 Mr. Retzlaff left a
derogatory written message directed at Mr. Al Foskett at the workplace. Furthermore, when
confronted by Mr. Foskett on March 25, 1998, Mr. Retzlaff failed to back away from the
confrontation despite the continued opportunity to do so, and participated in repeated obscene
calling of Mr. Foskett. This behavior is totally unacceptable, as such may lead to
Further provocation or harassment of employees will result in additional discipline up to and
immediate termination. Additionally, participation in any fight or assault on company
cause for immediate termination.
The grievant had also been referred to the Employee Assistance Program on March
25th. Subsequently, the Union
grieved over the letter and the suspension and demanded back pay for the time he spent at
the EAP and on suspension.
A grievance settlement was reached, which allowed pay for 5.3 hours for his initial meeting
with the EAP on the 25th,
and removed the word "written" from the phrase "derogatory written message" in the letter.
The balance of the letter
was unchanged, and the suspension was not rescinded.
After this incident, Butteris decided to formulate a formal policy on workplace
violence. An interim memo
was sent to employes on July 10th, reminding employes that "threats of
violence, violent and/or aggressive behavior,
threatening gestures, and intimidation of any form will not be tolerated." The memo advised
employes that such
behavior would trigger discipline "up to and including termination of employment." On
November 15th, a formal
policy was issued, titled "Appleton Mills Zero Tolerance Violence Policy." The policy
defined violence as including
"verbal or written threats or jokes, aggressive behavior, or physical confrontation or action,"
and warned that confirmed
acts of violence would be subject to discipline "up to and including immediate discharge."
This policy was posted in
the employe break room.
Butteris testified that he interviewed both Lee and Paalman. He had the impression
that Lee was genuinely
frightened by what the grievant had said, while Paalman was worried but not to the same
extent as Lee. He considered
both of them good employes and he believed what they told him. He then reported to Miller
and Bast about his
interviews. They discussed what to do, and Butteris told them that the 1998 discipline was a
They met with the grievant and Steward Ed Brown on May 13th and
described the allegations to him. He told
Butteris that he had never said anything about owning a trench coat. He admitted having
discussed his interest in
owning an AR-15 with other employes, but denied making any threats. When asked about
whether he had been sitting
in the parking lot on his day off and frequently checking the door to the loading dock, he
said nothing, but simply
shook his head. Given that nothing the grievant said persuaded them that Paalman and Lee
were wrong, the
management representatives went forward with the discharge.
Rick Retzlaff, the grievant, testified that he had been at
Appleton Mills for 11 years, and in that time had
received only a reprimand for attendance and a one-day suspension in 1998.
On May 10th, the grievant had two conversations with Lee and
Paalman between 10 and 11 in the morning.
Around 10:00 a.m. he was walking through the area on his way back from the rest room and
Lee called him over to
Paalman's desk. Lee made a comment about how he had finally found the break room, and
asked why the grievant
could take a break with the other crew but not with his own crew. The grievant replied
"After everything you guys
have done, I don't forgive and forget." Lee asked if he was still mad about the prank with
the orange, and the grievant
just repeated that he would not forgive and forget. He then left and returned to work.
At around 11:00, he was again returning from the rest room, and as he passed
Paalman and Lee were
discussing a scene from a western movie involving guns. The grievant paused and said he
liked 15's. Lee asked him
what a 15 was, and he said it meant an AR-15. Paalman said it was not a practical gun, and
the grievant said that it
was like a Cadillac not practical but it shouted "smooth." Lee told his wife wouldn't
let him have one, and Paalman
chimed in that he wasn't smart enough to load it and couldn't shoot it anyway. He told them
that he did a lot of target
shooting, and they would be surprised at what he could do. They continued to discuss how
expensive AR-15's were,
and after a time he walked away. He denied ever saying that he had a trench coat, or that he
owned an AR-15, or
making any comment about "If you guys only knew what was going on." Neither Lee nor
Paalman mentioned religion
or the catechism in relationship to forgiving or forgetting, and neither man told him to stop
The grievant acknowledged that he knew the company had a zero tolerance policy on
violence, and that
employes could be discharged for making threats, but he denied making any threats. He said
that he had been
somewhat moody around that time because of a back injury and because of some problems
with Jeff Steed. One
Saturday in April, Steed had choked him several times and threatened to kick his ass. He
told Krebsbach about it, and
asked him to keep an eye on Steed.
The grievant explained that the scissors throwing incident was in 1995 or so, and was
part of a series of
practical jokes that started when Dan Huss put some tape on his back. He put the tape on
Huss's back, and Huss then
took his scissors. Huss dropped them, and bent the tips. When the grievant got them back
he said "If you want them
that bad, take them" and tossed them over by Huss's feet. Huss picked them up, chuckled,
and went to get the grievant
a new pair from the supply room.
He explained that the reason he had been in the parking lot was to pick up another
employe, who was going
to do some welding work for his brother-in-law. He did not return Posselt's wave simply
because he didn't see him.
As for the trips to the loading dock, the grievant explained that he had a bad back, and that
he went outside to get fresh
air and stretch. He tried to explain this to Butteris and Miller at the meeting on May
13th, but they didn't want to hear
his side of things and cut him off.
James Krebsbach testified that the grievant never reported
anyone choking him. One Saturday in April, the
grievant did ask Krebsbach to spend more time in the Needling shop where he was working,
but he wouldn't tell
Krebsbach why he wanted him to do so.
William Bast testified that he had been told of a confrontation
between Steed and the grievant when he spoke
with Paalman and Lee. He and Butteris investigated the incident on May
14th by interviewing Steed. Steed told him
that he offered to help the grievant with a roll and the grievant rejected his offer. They
argued with one another and
exchanged profanities. Steed denied making any physical contact with the grievant. Steed
was issued a written
warning for violating the zero tolerance policy on verbal confrontations.
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Employer
The Employer takes the position that the grievant made what must reasonably be
to have been threats of violence to his co-workers, and that this constitutes grounds for
Workplace violence is a serious and growing concern, and is the third largest cause of death
injury at work. In response to these problems, the U.S. Department of Labor has
employers establish zero tolerance policies against violence. The Company maintains just
policy, promulgated after the last incident involving the grievant. That policy underlies the
in this case. It is, on its face, a legitimate and rational rule, one which the Company is
indeed obligated to strictly enforce.
The arbitrator must take what was said, and how it was said, in the context of the
which it was said. The grievant had previously been disciplined for physical confrontations.
10th he was clearly disturbed and angry. He spontaneously started speaking
to two co-workers, one
of whom he did not socialize with and had not spoken to in months. He made comments
a grudge against his co-workers, words to the effect that no one respected him, and that he
neither forgive nor forget. He dismissed religious beliefs as "crap," even though he was
be a religious person. His tone and his words were so odd that they gave his two co-workers
impression that someone else was speaking through him. Then, just weeks after a slaughter
Colorado High School by students wearing trench coats and carrying AR-15 assault rifles, he
Paalman and Lee that they did not know what was going on, but that he already had his
and his AR-15. Both Paalman and Lee credibly testified that they took him seriously and
that this was
not simply a matter of someone joking around.
The Company argues that it was entitled to believe Paalman and Lee and that the
should also believe them. The grievant's defense is that they are lying, but there is no
reason to think
that they are. Neither man has any apparent motive to lie in the first place, much less to
against the grievant. The only evidence that the two men are lying is the testimony of the
However, he had a clear motive to lie, and he lied at several points in his testimony. He
he was cut off during the May 13th meeting with management and was not
allowed to tell his story,
but the managers who were there deny that, and Union Steward Ed Brown, who was present
meeting, was never called to back him up.
Likewise, he explained that he was sitting in his truck in the parking lot on his day off
because he was
picking someone up, but that employe was never called to confirm his story. The only
conclusion is that the grievant is lying throughout, and that he did, in fact, make the threats
The Company concedes that, in retrospect, the grievant did not actually kill anyone.
However, the Company argues that it cannot be forced to wait until violence occurs before
action. It is obliged to respond immediately and, in choosing discharge as its response, it
reasonably. Discharge is an appropriate response, and it is well settled that an
overturn an appropriate penalty, even if he might have made a different decision if the
his in the first instance. The grievant is a long-term employe, but the Company factored that
it gave him and the Union every opportunity to refute the charges. He did not do so, and the
Company cannot be forced to tolerate threats of violence, even if they are made by long
The Union presented evidence that might suggest that others have engaged in violent
without disciplinary consequences, suggesting that the penalty here is discriminatory. This
of the grievant's claim that he had been strangled by another employe. However, there is no
to support this claim. The grievant claimed to have reported this to a supervisor, but the
testified and denied any such report. Thus, there is no evidence of discrimination.
In summary, the grievant had been given an unmistakable warning in April of 1998
Company would not tolerate confrontations and violence. As a direct result of his
another employe, the Company promulgated a zero tolerance policy on violence and threats
violence. He was counseled and he was referred to the Employee Assistance Program.
Notwithstanding this, in May of 1999, he confronted two other employes and made threats of
catastrophic physical violence in the workplace. His response has been to deny it happened,
though the evidence overwhelmingly establishes that it did. Given his personal history, his
denials, and his refusal to take any responsibility for his actions, the grievant is not entitled
benefit of the doubt. The Company is obliged to safeguard its workers from intimidation and
harm, and the arbitrator should, accordingly, uphold the discharge and deny the grievance.
The Position of the Union
The Union argues that the grievant did nothing wrong, and that he should be
made whole for his losses. The grievant is a long service employe, who is accused of
reprehensible conduct, conduct which demands at least clear and convincing proof of guilt.
evidence here does not even satisfy a preponderance standard.
The termination here is the result of two other employes, for reasons of their own,
a tale about the grievant. Certain elements of their stories, such as him saying he could not
or forget, expressing an interest in having an AR-15, and saying he was
better with a gun than Paalman thought he was, are based on statements that the
making. Other elements, such as him claiming to own a trench coat and to own an AR-15,
invention. These latter statements are, on their face, implausible. The grievant would not
claimed to own an AR-15 when both Paalman and Lee knew it to be untrue. Moreover, his
for speaking to Paalman and Lee are completely incomprehensible. It cannot have been to
in someone since, if he did own an AR-15 and have some sort of plans for it, he hardly
confided in Lee, a person he did not get along with. It cannot have been to threaten them,
of them acknowledge that they did not feel threatened. It cannot have been to spread the
his "threats" since he said nothing about telling others. In short, there is no reason for him
said any of this.
The credibility of Paalman and Lee is seriously undermined on several other fronts.
claim to have seen the grievant once forcefully throw a pair of scissors at a management
Yet there is no record of any discipline for this alleged incident. Clearly the grievant's
version of this
incident, that he tossed the scissors to the man's feet, is the truth. Yet Paalman and Lee
to make it seem that the grievant is a violent man. If true, how can it be that neither man
felt the least
bit threatened by the grievant's alleged comments? Both testified to feeling no personal
both felt free to openly report the matter to management. None of this is consistent with the
of the grievant as violent. These inconsistencies highlight the distortions and half-truths upon
the Company's case depends. The two accusers also lied about how they came to report this
conversation to management. Lee claims that he reflected on it and discussed it with family
friends on the night of the 10th but denies having discussed it with Paalman
that day. Paalman
testified that they discussed it shortly before Lee quit for the day. The two failed to
detail of their stories, and this discrepancy draws both men's testimony into question.
The grievant denies making any threats, and the only thing that can even loosely be
as a threat in Paalman and Lee's reports is the statement "If you only knew; I already have
coat and my 15." Even assuming that he said this, it cannot reasonably be construed as a
immediately replied that the grievant did not own an AR-15, and Paalman disparaged his
a weapon. Thus, the two men to whom the threat was supposedly uttered knew it was not
and did not treat it as a threat. The Company apparently viewed this as some type of global
to all employes, but that is a very strained and very speculative interpretation of what was
said. A threat that is not credible, has no object, and does not frighten anyone is no threat at
Under a just cause standard, it cannot possibly be the basis for the discharge of an otherwise
competent and long service worker.
Even if the arbitrator were to somehow conclude that the grievant said the words
to him, and somehow concluded that they constituted a threat, he cannot sustain the
Company acknowledges that the grievant's prior suspension, his alleged moodiness, his
the parking lot on a day off and his frequent visits to the loading dock were all part and
parcel of the
decision to discharge him. Aside from the suspension, none of this represents misconduct.
since he was discharged, in part, for innocent conduct, the entire discharge must fall.
Company admits that its "zero
tolerance" policy does not require termination and that, in fact, another employe who
policy received a mere warning. Given the long and excellent service of the grievant, the
evidence upon which these charges rest and the lack of any actual threat or harmful conduct,
arbitrator must sustain the grievance and reinstate the grievant to his former position.
The questions before the arbitrator are (1) whether the grievant made the statements
attributed to him by Lee
and Paalman; if so, (2) whether these statements constitute threats of violence in violation of
the Company's rules; and,
if so, (3) whether discharge is an appropriate penalty. Each is addressed in turn. First,
however, there is the issue of
the appropriate burden of proof. Given the seriousness of the charges, the Union argues that
there must be proof of
guilt beyond a reasonable doubt. Given the civil nature of arbitration, the Company suggests
that a preponderance of
the evidence is all that is required. A just cause standard is commonly understood to require
different degrees of proof,
depending upon the nature of the offense. The charge against Retzlaff is one involving moral
turpitude and possible
criminal conduct. As noted in Bornstein 1/ ". . . it is almost certainly the "clear and
convincing evidence" standard
that will be applied (either expressly or by implication) by arbitrators in cases involving
accusations of criminal conduct
or moral turpitude . . ." This is because the grievant's reputation and future employability
are at greater risk in the face
of charges that he threatened workplace violence than they would be in, for example, an
1/ See Bornstein, et al., Labor and
Employment Arbitration, (2d Edition, Matthew Bender), Volume
1 (Release No. 18, April 1998), at Sec.§506, footnote 1.
Were the Statements Made?
The first question turns purely on a credibility determination. There are only three
to what was and was not said between the three men on May 10th
Paalman, Lee and the grievant.
Paalman and Lee both agree on their version of events, while the grievant has a substantially
version. There is no way to reconcile the accounts. In Paalman and Lee's telling, there was
conversation late in the afternoon, initiated by the grievant. He made specific, unusual
paralleling events at Columbine High School, and there was a conversation about the
religious teaching. None of this could have been said and then forgotten by him. By the
telling, there were two conversations in mid to late morning. The first was initiated by Lee
him over to give him a hard time about not taking breaks with the rest of the crew, and the
was a friendly discussion of guns.
The Union points to what it believes are inherent inconsistencies in the versions by
and Lee, placing great stress on Lee's testimony that the two men did not discuss the incident
afterwards on the 10th in contrast to Paalman's testimony that they did
discuss it. The Union points
to this as evidence of a failure to coordinate their lies. That is a more sinister reading than
justifies. According to Paalman, after speaking with some maintenance personnel, he
told Lee that having thought it over, he took it as a threat, asked if Lee saw it the same way
said he did. Lee recalled speaking with Paalman the next day, but not that afternoon. This
is a minor
discrepancy and not particularly telling. There are always variations between witnesses'
of details months after events took place. If there were other inconsistencies in the men's
might add to their cumulative weight. Standing alone, it does little to shake their overall
The Union also suggests that it is absurd to think that the grievant would confide
nefarious plan to Lee, since they were at odds and did not speak to one another. There are
responses to this. First, if the comments are taken as threats of violence against those who
him wrong, it makes perfect sense that he might utter them in the presence of one of those
Second, if it makes little sense that he would make this statement to Lee because they were
it makes even less sense that he would casually walk up to him and strike up a conversation
how much he liked AR-15's. According to the grievant's version of events, Lee had
not an hour earlier, and he'd told Lee he would not forgive and forget the treatment he had
Yet he then strolled up and engaged in idle conversation with a man he hadn't spoken to in
The greatest problem faced by the grievant and the Union in this case is explaining
Paalman and Lee would engage in this plot. While they do not bear any burden of proof,
this is a
credibility case and the testimony, once given, begs for some explanation. There is none.
some friction between Lee and the grievant, but that leaves Paalman's role unexplained.
Paalman and the grievant agree that they were getting along reasonably well. Yet, if the
telling the truth, Paalman and Lee must consciously have decided to coordinate a fairly
involving details about the catechism and telling him not to act stupid. They must then have
communicated this to the Union and to management. Thereafter, Paalman for some reason
not being too concerned about it, since that was the impression he left with Butteris. That
is not consistent with a plan to get the grievant fired, since conveying great concern and fear
normally provoke more of a response. It is also notable that the statements attributed to the
could have been somewhat clearer if they were merely a fabrication in the first place. The
to an AR-15 works as a reminder of Columbine, but both of them knew the grievant did not
AR-15, and a statement could have been invented that served equally well.
Crediting the grievant's testimony involves discrediting Paalman and Lee. It also
Butteris, Bast and Krebsbach, to varying degrees, be discredited. The grievant claims he
Krebsbach he was being choked and assaulted by Steed, while Krebsbach testified that the
asked him to keep a closer eye on his department, but refused to tell
him why. The grievant claims that he was not allowed to explain his presence in the
parking lot or
his trips to the loading dock, while Butteris and Krebsbach both testified that he was asked
them and merely shook his head. This is a fairly significant point, and there was a Union
present in the room during the meeting. Yet he did not testify in support of the grievant.
no explanation for the wide-ranging conspiracy that must have gone forward if the grievant is
the truth on all of these points. Taking the record as a whole, and weighing the problems
with the grievant's version of events, I conclude that he did not testify truthfully, and instead
the testimony of the other witnesses. It necessarily follows that he made the statements
Paalman and Lee.
Were the Statements a Threat?
The grievant told Paalman and Lee something to the effect of "No one respects me.
you knew what was going on. I don't ever forgive and forget." They discussed forgiveness
grievant went on "If you only knew I already have my trench coat and my 15."
Paalman asked if
he meant to shoot him, and the grievant said he didn't mean him. The Union forcefully
this cannot be taken as a threat, because neither Paalman nor Lee felt immediately threatened
grievant did not identify anyone else as the object of a threat. With all due respect to the
arguments, any reasonable person would take this as a threat of violence. It begins with a
of not being respected and a vow not to forgive or forget, and goes on to make a direct
reenacting a widely reported massacre that took place only weeks before. The fact Paalman
ruled out as a victim does not mean that there was no intended victim. The Columbine
did not have specific individual targets at the outset, merely general groups that the shooters
identified as having wronged them. Moreover, when Paalman asked if the grievant meant to
him, he did not say he was not going shoot anyone. He merely said he wasn't talking about
That rather clearly suggests that he was talking about someone else.
The Union also disparages the notion of a threat because both Paalman and Lee knew
grievant did not have an AR-15, and said as much. The fact that he did not have the actual
he specified does little to reduce the threat inherent in his statements. The mention of an
a trench coat was obviously intended to refer to Columbine, and the threat carried by that
is to violently retaliate against those who had tormented him, regardless of whether the
uses precisely the same weaponry. Moreover, the grievant had previously told his
he had access to an AR-15, through his brother-in-law. Thus, it was not impossible that he
have used that specific weapon in an attack.
It is possible, of course, to speculate that this was all a bad joke or an inappropriate
blow off steam. However, according to Paalman and Lee, the grievant was angry and
more agitated as he spoke. He seemed disturbed and made comments about religion being
comments that were inconsistent with his known beliefs. These are not
attributes of a joke. More importantly, he never explained, at the time, at the
grievance meetings or
at the arbitration hearing, that he said it, but didn't mean anything by it. He consistently
these things. Assigning some innocent meaning to the statements requires me to invent an
explanation that the grievant himself did not offer. Instead, I conclude that the grievant's
taken in the context of his angry demeanor and his personal history of conflicts with other
are most reasonably taken as a threat of violence. This violates the Company's rule
threats of violence, and constitutes just cause for discipline.
Is Discharge An Appropriate Penalty?
The grievant made what can most reasonably be understood as a threat of violence
his co-workers. Given the context, the Company and his co-workers were entitled to take it
serious threat. He made this threat in the face of a suspension and a warning letter from a
earlier, cautioning against provocative conduct and confrontations with his fellow employes,
as a written Company rule warning that violence and threats of violence would lead to
to and including discharge. The grievant himself conceded that he was aware of the rule,
that threats of violence could result in discharge. All of this argues in favor of the
of a severe penalty.
Balanced against the aggravating circumstances are the facts that the grievant has 11
of service, and that no one was actually harmed. This latter point cannot be accorded great
inasmuch as the Company's action pre-empted any possible workplace action.
This is a closer case on the issue of penalty than it is on the merits. However, the
is whether the Company abused its discretion in determining the penalty when it made its
not whether the arbitrator, at a remove of many months, believes that there was a superior
Management was faced with employe reports of a credible threat of violence from an
a history of bad relations with co-workers, recent evidence of unusual behavior, and prior
involvement with the EAP. 2/ When confronted with the allegations, the
grievant denied them, and
management did not believe him. All of this took place in an atmosphere of greatly
awareness of gun violence, both in the workplace and in society in general. It may seem
the penalty suffered for an action can vary, depending upon when the action takes place and
general atmosphere regarding the action is at the time. But, where the issue is the
the decision, that assessment cannot be completely divorced from the overall context in
decision is made, in no small part because that is the context in which the threat was made.
2/ The observation about EAP involvement is
offered solely for the proposition that the grievant had already
had the benefit of counseling over his workplace relations. Involvement in an EAP is not
evidence of any
misconduct or general unfitness for employment.
Weighing the grievant's length of service against the seriousness of the threat and the
to safeguard its other workers, I cannot conclude that the Company abused its discretion in
deciding to discharge the
grievant rather than imposing some less serious penalty. Accordingly, I have denied the
grievance in its entirety.
On the basis of the foregoing, and the record as a whole, I have made the following
The Company did not violate the collective bargaining agreement when it terminated
grievant, Ricky Retzlaff. The grievance is denied.
Dated at Racine, Wisconsin, this 10th day of March, 2000.
Daniel Nielsen, Arbitrator